“Do I need my ex’s written consent whenever I want to take our child out of state for vacation?” You may be surprised how many times a Salt Lake City divorce attorney at The Ault Firm hears this question each week; in fact, so many times that we have decided to give you a detailed answer once and for all.
But before we delve into the issue of taking your children out of state with or without the other parent’s written consent after a divorce, let’s review the question we have recently received from one of our readers.
“Me and my ex-wife have joint physical and legal custody but nowhere does it say in the divorce papers that we have to give one another written consent whenever we want to take our children out of state. I’m not sure what to do, is there a law in Utah requiring parents to seek written consent of the other parent when taking children out of state? Thanks in advance, Brad.”
Taking a child out of state for an extended period of time
Thank you for your question, Brad. To answer it, we are going to use the information provided in Utah Code Section 30-3-36(2), as it applies to your particular situation.
First and foremost, under Utah law, each parent has a legal duty to consider the possible adverse effects upon their child caused by the child’s lack of appropriate bond with the noncustodial parent. This rule applies to situations when parent-time has not taken place for an extended period of time. This sounds like your situation, as you are most likely planning to take your child out of state for vacation for an extended period of time.
Information that must be provided to the other parent
Utah law also provides that whenever one of the parents decides to take his or her child out of state for emergency purposes, he or she must provide all of the following information to the other parent:
- travel dates;
- itinerary and destination;
- the places the traveling parent and the child are planning to visit and where they are planning to stay (hotel, apartment, etc.); and
- the name and phone number of an available third person who is reasonably expected to be aware of the child’s location.
Note: Under Utah law, unsupervised travel of a child under the age of five years is not recommended.
Utah law does not require the other parent’s written consent, but…
“Technically, Utah law does not require your ex’s written consent or permission for you to take your child out of state during your custodial or parent-time periods,” concludes our experienced divorce attorney in Salt Lake City.
However, what Utah law does require is that you must provide the other parent with the information regarding the dates and location of where you and the child will be staying, as well as contact information for the child in order to ensure that your ex can contact your child at any available time.
Therefore, your ex cannot prevent you from taking your child out of state for vacation by withholding his or her “consent” because his/her consent is simply not required by Utah law.
What to do if your ex prevents you from taking your child out of state?
Okay, now that we have established that you do not need the other parent’s written consent to take your child out of state, you may be wondering if there is anything you can do if your ex is refusing to let you pick up your child from his/her house to go on vacation.
That’s a good question. The only option you have is to file a motion for a writ of assistance, which is basically requesting the court to issue an order to the other parent to exchange custody of the child with you on your custodial or parent-time day. The order can be enforced by local law enforcement, which, if necessary, will physically force your ex to let you take your children with you. Typically, you need a maximum of 28 days between the date you file a motion for a writ of assistance and the date of the hearing.